In just about every criminal prosecution, the credibility of the alleged victim and other witnesses is of utmost importance to the State to gain a conviction. As such, it is equally of vital importance for the defense of any criminal charge to include elements that attack the credibility of the State’s witnesses. While there are a few methods of attacking credibility, one of the most common forms is for the defense to prove that the witness is somehow biased against the defendant.


Fla. Stat. 90.608

Chapter 90 of the Florida Statutes contains the Florida evidence code which governs the admissibility of evidence in a trial. Florida Statute 90.608 deals with the impeachment, i.e., attacking the credibility, of witnesses is states:

90.608 Who may impeach.—Any party, including the party calling the witness, may attack the credibility of a witness by:

(1) Introducing statements of the witness which are inconsistent with the witness’s present testimony.

(2) Showing that the witness is biased.

(3) Attacking the character of the witness in accordance with the provisions of s. 90.609 or s. 90.610.

(4) Showing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified.

(5) Proof by other witnesses that material facts are not as testified to by the witness being impeached.

Most of the methods of impeachment laid out in 90.608 are self-explanatory. Obviously, if a witness has said something different on a prior occasion, their testimony shouldn’t be believed. If a witness dislikes the defendant for some reason, his or her testimony should be doubted. If they have a reputation for lying, they should not be believed. If they were drunk when they witnessed the event, it should cast doubt on their ability to remember the events. Lastly, if other people remember it differently, that should bear on the amount of weight to be given to the witness’s testimony.


Bias of a Witness

The recent case of Peret v. State, 45 Fla. L. Weekly D1062a (Fla. 2d DCA 2020) indicates just how vitally important it is for defense counsel to challenge the bias of a witness. In this case, Mr. Peret was charged with aggravated assault by allegedly running over a woman’s arm with his vehicle. Peret sought to admit evidence that she had continued to live with him for months after the incident. The alleged victim only sought criminal charges after Peret evicted her from his residence. The trial court found that this evidence was irrelevant and refused to admit it in the trial.

Without this evidence of the alleged victim’s bias, the jury convicted Peret of reckless driving causing serious bodily injury. Peret challenged the court’s ruling excluding the evidence to the Second District Court of Appeal and asked for a new trial. Chief Judge Kouhzam wrote an opinion, in which justices Casanueva and Atkinson agreed, that granted the new trial and ruled that the evidence of bias should have been admitted.

The Court held:

“Any party may attack a witness’s credibility by “[s]howing that the witness is biased.”  § 90.608(2), Fla. Stat. (2018).  “A defendant should be afforded wide latitude in demonstrating bias . . . on the part of a witness.”  Lloyd v. State, 909 So. 2d 580, 581 (Fla. 2d DCA 2005) (quoting Henry v. State, 688 So. 2d 963, 966 (Fla. 1st DCA 1997)).  Indeed, “[b]ias or prejudice of a witness has an important bearing on his credibility, and evidence tending to show such bias is relevant.”  Id. (quoting Webb v. State, 336 So.2d 416, 418 (Fla. 2d DCA 1976)); see Peterson v. State, 24 So. 3d 686, 689 (Fla. 2d DCA 2009) (“It has long been established that evidence of a witness’s interest, motives, animus, or status in relation to the proceeding is not collateral or immaterial.”).

“In Peret’s case, Lamond was the only witness at the scene when she was injured and the only person who could contradict Peret’s version of events.  Lamond contended that Peret pushed her out of his vehicle from the driver’s seat and drove off, running over her arm in the process.  But Peret claimed that he stopped his van, walked over to the passenger side, and opened Lamond’s door.  At that point, she fell out of the van and scrambled away from Peret after he tried to break her fall.  Clearly, Lamond’s version of events is far worse than Peret’s and indicative of the “willful or wanton disregard for the safety of persons or property” required for a reckless driving conviction.  See § 316.192(1)(a).  It was therefore improper for the trial court to exclude evidence that Lamond continued to live with Peret for months after the incident, only cooperating with prosecutors after he evicted her.  This evidence clearly indicates the type of bias or motive to lie contemplated by section 90.608(2).  See, e.g., Musson v. State, 184 So. 3d 575, 579 (Fla. 2d DCA 2016) (reversing kidnapping conviction where case “appeared to turn on one or two witnesses’ recollection of events” and where “testimony about one witness’ alleged bias or motive would be of vital relevance”);  Peterson, 24 So. 3d at 689 (reversing robbery conviction where defendant was prohibited from demonstrating bias of key witness who had motive to lie for improved employment prospects); Lloyd, 909 So. 2d at 581 (reversing assault conviction where defendant was not permitted to show bias of State’s witness who had assaulted the defendant in an earlier incident).  Nor can we say that this error was harmless; Lamond was crucial to the State’s case as the only witness to the incident.  We therefore reverse and remand for a new trial.”


Call an Experienced Tampa Trial Attorney

As was shown above, it is of crucial importance that a person facing a criminal charge should hire an attorney with experience introducing evidence of bias. Also, it is important that your attorney knows how to preserve any errors by the trial court for appeal. It could get you a second chance should you be convicted at the first trial.

Call us today at 813.397.3965 to set up your free consultation. At this consultation, board certified attorney Adam Bantner will walk you through the process of building a defense and answer any questions that you may have. We are Your Community Lawyer and we can’t wait to help!